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Himachal Pradesh High Court · body

2009 DIGILAW 1244 (HP)

INDER SINGH PATIAL v. PARVEEN KUMARI

2009-12-09

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.- This petition has been directed by the husband under Section 482 Cr.PC read with Article 227 of the Constitution of India against the common order dated 1.4.2008 passed by learned Sessions Judge Shimla in Criminal Revision No. 23-S/10 of 2007 and Criminal Revision No. 2-S/10 of 2008 and order dated 26.5.2007 passed by learned Chief Judicial Magistrate, Shimla. 2. The facts in brief are that respondents 1 to 4 who are wife and children of petitioner had filed petition under Section 125 Cr.PC against the petitioner seeking maintenance which was allowed by learned Chief Judicial magistrate on 26.5.2007 and awarded Rs. 1500/- PM to respondent No. 1, Rs. 1000/- PM to respondents 2 to 4 each from the date of petition i.e. 6.8.2003. The petitioner filed Cr. Revision No. 23-S/10 of 2007 against the decision dated 26.5.2007. The respondents filed Cr. Revision No. 2-S/10 of 2008 against decision dated 26.5.2007. The Cr. Revision No. 23-S/10 of 2007 and Cr. Revision No. 2-S/10 of 2008 were decided by learned Sessions Judge by common order dated 1.4.2008. The Cr. Revision No. 23-S/10 of 2007 was dismissed, Cr. Revision No. 2-S/10 of 2008 was allowed and order dated 26.5.2007 was modified. The respondent No. 1 was awarded maintenance at the rate of Rs. 2500/- PM and respondents 2 to 4 were awarded maintenance at the rate of Rs. 1500/- PM each from the date of filing of the petition under Section 125 Cr.PC. The petitioner has filed the present petition against the common order dated 1.4.2008 of learned Sessions Judge and order dated 26.5.2007 of learned Chief Judicial magistrate. 3. The further facts are that marriage between petitioner and respondent No. 1 was solemnized on 17.1.1991, they lived as husband and wife and children respondents 2 to 4 were born from the wedlock. The respondents filed petition under Section 125 Cr.PC against petitioner on the grounds that petitioner has failed to maintain them even though his salary is about Rs. 15,000/- PM. The respondents are unable to maintain themselves and they do not have any source of income. 4. The petitioner has not filed any reply to the main petition. However, in reply to the interim relief application he has taken the stand that petition has been filed without reasonable and probable cause. The respondents have concealed material facts. 15,000/- PM. The respondents are unable to maintain themselves and they do not have any source of income. 4. The petitioner has not filed any reply to the main petition. However, in reply to the interim relief application he has taken the stand that petition has been filed without reasonable and probable cause. The respondents have concealed material facts. The respondents reside at Village Gadhyani, Tehsil Sarkaghat and the Court at Shimla had no jurisdiction to try the petition. The petitioner had been maintaining and providing basic amenities of life to respondents. The respondent No. 1 has refused to look after old, ailing and handicapped parents of petitioner. She has got herself separated from the parents of the petitioner and she had been -3compelling the petitioner to take her and children to Shimla. The respondent No. 1 got training of beautician by spending Rs. One lakh and even a shop was opened for respondent No. 1 in February 2001 of Cosmetics etc. from which respondent No. 1 had been earning Rs. 4500/- PM. The respondent No. 1 used to beat old parents of petitioner. LIC policy with premium at the rate of Rs. 200/- PM, RD in the name of two children had been opened by petitioner, a sum of Rs. 1200/-PM were being deposited in the saving account of respondent No. 1 in post office. The parties led evidence and learned Chief Judicial Magistrate on 26.5.2007 allowed the petition. Both the parties assailed the order dated 26.5.2007 by way of revisions which were decided by learned Sessions Judge by common order as indicated above. 5. I have heard the learned counsel for the parties and gone through the record. 6. The learned counsel for the petitioner has reiterated the grounds of petition whereas learned counsel for the respondents has supported the order dated 1.4.2008. It has been submitted that two Courts below have considered the evidence. The petitioner has admitted his salary about Rs. 15,000/- PM. The learned Sessions Judge has in all awarded Rs. 7500/- PM to respondents. The three respondents are school going children. The amount of Rs. 7500/- PM awarded to respondents is not on the higher side. It has been submitted that the maintenance amount awarded by learned Sessions Judge to the respondents is on the lower side keeping in view the growing needs of the children and the income of petitioner. The three respondents are school going children. The amount of Rs. 7500/- PM awarded to respondents is not on the higher side. It has been submitted that the maintenance amount awarded by learned Sessions Judge to the respondents is on the lower side keeping in view the growing needs of the children and the income of petitioner. It has been submitted that since the order dated 1.4.2008 has not been assailed by respondents, therefore, learned counsel for the respondents has supported the order dated 1.4.2008. 7. The learned counsel for the petitioner has submitted that impugned orders have been passed by Courts below on sympathetic grounds. It has not been considered by the lower courts that in the upper storey of the house, parents of the petitioner are residing and in the ground floor, respondents are residing. The petitioner was appearing in person and he could not appear in the Court of Learned Sessions Judge on 1.4.2004 due to illness. In these circumstances, the Learned Sessions Judge should have issued fresh notice to the petitioner who has been condemned unheard vide order dated 1.4.2008. The respondent No. 1 is harassing the petitioner by filing false and frivolous cases. She had made false and frivolous report under Section 498-A IPC against the petitioner and his parents at Police Station Sarkaghat which was dismissed, but respondent No. 1 has filed appeal before the learned Sessions Judge Mandi. The respondent No. 1 has also filed complaint under The Protection of Women from Domestic Violence Act, 2005 which is pending in the Court of Judicial Magistrate Sarkaghat. The learned Sessions Judge has enhanced the maintenance from Rs 4500/- PM to Rs. 7000/- PM to respondents wrongly and illegally. The petitioner is maintaining the respondents. The respondent No. 1 has independent income from shop and other sources. The documentary evidence has been ignored by the Courts below. 8. The petitioner has not denied the marriage of respondent No. 1 with him, he has also not denied that respondents 2 to 4 are born from the wedlock of petitioner with respondent No. 1. The statement of respondent No. 1 was recorded on 3.5.2005 on which date she has stated that they have three children aged 12, 11 years daughters and 9 years son who are studying in 9th, 8th and 6th class respectively. The statement of respondent No. 1 was recorded on 3.5.2005 on which date she has stated that they have three children aged 12, 11 years daughters and 9 years son who are studying in 9th, 8th and 6th class respectively. The petitioner has not given any maintenance to her and children for the last three years nor he has -5 given any expenses for the studies of the children. The petitioner has paid only through Court order. She has stated that her father was maintaining the respondents. The petitioner was not got treated by respondent No. 1 when she sustained back bone injury. The petitioner is serving as PA in the H.P. Government Secretariat and is earning Rs. 15000/- PM. The respondents require Rs. 8000-9000 PM on account of maintenance. In cross examination she has stated that she has no independent income. The shop was got opened by her father which has been closed as she could not run the shop. She has denied that she had given beatings to the parents of petitioner. 9. PW-2 Sarwan Singh S/O Damodar Ram is the father of respondent No. 1. He has stated that petitioner is not maintaining the respondents, rather he gives beatings to respondent No. 1. He had been bearing the expenses of his daughter. In cross examination he has stated that when maintenance was stopped to respondent No. 1 then he gave maintenance to her. He has denied that his daughter is earning Rs. 40005000/ PM by stitching cloths. He has denied that in their family there is history of genetic epilepsy and his daughter is sick. 10. RW- 1 Inder Singh petitioner has admitted that respondent No. 1 is his wife and respondents 2 to 4 are his children. He has stated that his wife had been running a shop since 2001, she stitches cloths and is also running a beauty parlor. The respondent No. 1 is not serving his parents nor she is performing her matrimonial duties. She puts pressure on his parents to send her to Shimla along with children. He had been paying Rs. 1200/- to respondent No. 1 through IPOs. In addition, he had been paying her LIC premium Rs. 200/- PM, rent of the shop Rs. 200/- PM. He had been -6- providing medicines and other articles to respondent No. 1 as per her requirement. In all he used to spend Rs. He had been paying Rs. 1200/- to respondent No. 1 through IPOs. In addition, he had been paying her LIC premium Rs. 200/- PM, rent of the shop Rs. 200/- PM. He had been -6- providing medicines and other articles to respondent No. 1 as per her requirement. In all he used to spend Rs. 3000/- PM on the maintenance of respondents. In cross examination he has admitted that a case under Section 498-A IPC is pending against him and his father. He has admitted that his salary is Rs. 15000/- PM. He could not provide any documentary proof regarding the payments made by him in the examination in chief. 11. RW-2 Sarwan Singh is the father of the petitioner. He has stated that his daughter-in-law has some mental disorder for the last five years. The respondent No. 1 had been giving beating to him. In cross examination he has stated that he received telephone calls that his daughter-in-law is characterless. In cross examination he has admitted that a case under Section 498-A IPC is pending against him and petitioner. RW-3 Dina Nath is a witness to the effect that he tried to settle the dispute between petitioner and respondent No. 1 amicably. The petitioner has tendered in evidence Exts. D1 to D10. 12. The respondent No. 1 in her statement has specifically stated that petitioner is not maintaining the respondents, who have no independent source of income. She has stated that the petitioner is drawing about Rs. 15000/- PM, which fact has not been denied by petitioner. The petitioner has taken the stand that he had been providing all basic amenities to the respondents and even paying Rs. 1200/- PM. The petitioner has stated that he had been incurring Rs. 3000/- PM expenses on respondents. The respondents are to be paid maintenance keeping in view the status of the petitioner. It has come on record that the petitioner is working as PA in the H.P. Government Secretariat and is drawing Rs. 15000/-PM salary. The petitioner has not proved his other liabilities. It appears that the father of the petitioner has some property in the village. The petitioner has failed -7to prove that respondent No. 1 has independent income. RW-2 Sarwan Singh, father of respondent No. 1 has stated that petitioner had refused to maintain the respondents and he had been supporting the respondents. The petitioner has not proved his other liabilities. It appears that the father of the petitioner has some property in the village. The petitioner has failed -7to prove that respondent No. 1 has independent income. RW-2 Sarwan Singh, father of respondent No. 1 has stated that petitioner had refused to maintain the respondents and he had been supporting the respondents. He has also stated that he got his daughter treated for backbone injury. 13. The grievance of the petitioner is that documentary evidence has not been considered by the Courts below. The documents Exts. D1 to D10 were tendered by the petitioner in his statement. These documents were not put to respondent No. 1 nor the respondents were given an opportunity to cross examine the petitioner with respect to Exts. D1 to D10. Therefore, the petitioner cannot take benefit of documents Exts. D1 to D10. There is no substance in the submission of learned counsel for the petitioner that learned Sessions Judge should have given notice to petitioner when he failed to appear in his Court on 1.4.2004. On 26.3.2008 the learned Sessions Judge had fixed the date on 1.4.2008 and ordered that notice be issued to petitioner. The notice for the date 1.4.2008 was served on the petitioner, therefore, when petitioner did not appear in the Court of learned Sessions Judge on 1.4.2008 despite service, the learned Sessions Judge was not under legal obligation to again serve the petitioner. 14. The two Courts below have considered the evidence. The learned Chief Judicial Magistrate had awarded maintenance to the respondents at the rate of Rs. 1500/-PM each which has been increased by learned Sessions Judge to Rs. 2500/- to respondent No. 1 and Rs. 1500/- to respondents 2 to 4 each. The petitioner is drawing Rs. 15000/- PM. The petitioner has not filed reply to the main petition. The scope of petition under Section 482 Cr. PC read with Article 227 of the Constitution is limited. It cannot be treated as an appeal. There is no error of jurisdiction, the common impugned order dated 1.4.2008 is not perverse. The view -8taken by learned Sessions Judge in the common impugned order dated 1.4.2008 emerges from the evidence on record, the learned counsel for the petitioner has failed to make out any case for interference. Resultantly, the petition fails and is dismissed with no order as to costs.